California Court of Appeal Jul 25, 2023 No. E077931Unpublished
Filed 7/25/23 P. v. Schumann CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E077931
v. (Super.Ct.No. FSB032415)
KATHERINE SCHUMANN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steve Malone,
Judge. Reversed and remanded with directions.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Senior Assistant Attorney General, and Lynne G. McGinnis
and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
Petitioner Katherine Schumann, her boyfriend (and codefendant) Gregory Vance,
Jr., and the victim were running a fraudulent check-cashing scam. Vance and Schumann
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suspected the victim of taking more than his share of the proceeds. Armed with knives,
they went to his home. By the time they left, the victim had been fatally stabbed. The
evidence was conflicting as to whether Vance or Schumann was the actual killer.
Schumann was convicted of (among other things) first-degree murder, on a felony
murder theory, and sentenced to 25 years to life in prison.
The trial court denied Schumann’s petition to vacate her murder conviction under
Penal Code section 1172.6.1 She appeals.
Schumann contends that the trial court erred by applying an erroneously low
standard of proof. We agree. Although there was a split of opinion at the time, it was the
better view — and the Legislature subsequently confirmed — that the trial court had to
evaluate the evidence independently, under a beyond-a-reasonable-doubt standard. The
trial court, however, expressly stated, on the record, that it was using a lower standard.
Schumann also contends that the error is reversible per se. We disagree. In a
section 1172.6 proceeding, the burden of proof is not constitutionally compelled; it is a
matter of state law. Thus, the error is not reversible unless it has been shown to be
prejudicial.
1 All further statutory citations are to the Penal Code.
The petition was actually filed under former section 1170.95. (Stats. 2018, ch. 1015, § 4, amended by Stats. 2021, ch. 551, § 2.) Effective June 30, 2022, former section 1170.95 was renumbered as section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We will use section 1172.6, somewhat anachronistically, to refer to whichever one of the two statutes was in effect at the relevant time.
2
Schumann, however, alternatively contends that the error was prejudicial even
under this standard. We agree. In light of the whole record, there is a reasonable
probability that, if the trial court had applied a beyond-a-reasonable-doubt burden of
proof, it would have granted Schumann’s petition. Accordingly, we will reverse and
remand for reconsideration.
I
STATEMENT OF FACTS
A. Preface.
The People requested judicial notice of specified portions of the trial record. The
trial court never expressly ruled on that request. However, at the evidentiary hearing, the
People drew the trial court’s attention to specific trial testimony and exhibits. In their
statements of fact in their appellate briefs, both sides cite to the trial evidence. At
Schumann’s request, which the People did not oppose, we have taken judicial notice of
the trial record. We conclude, then, that both sides agree that the trial court did consider
and did rely on the trial record, and that we can, too.
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B. Prosecution Evidence.
1. The check scam.
Schumann was in a romantic relationship with Gregory Vance, Jr. They were both
involved in a check scam, along with Clifford James,2 Christopher Daniels,3 and victim
Benny Ellis. It involved depositing fraudulent checks into Ellis’s bank account and
withdrawing cash. Ellis was 59 years old and nearly blind; he used a white cane. James
acted as his caretaker and had access to his ATM card(s).
On October 21, 2001, Vance deposited a $900 check and withdrew $100 (Ellis’s
daily maximum). The next day, however, he found that there was only $700 in the
account.
2. The confrontation at Fanning’s house.
In the wee hours of October 23, 2001, James, Daniels, and Daniels’s friend Curtis
Fanning4 were sitting in Daniels’s car outside Fanning’s house.
2 James also went by the names Gerrod James Clifford Christian, Jr., Clifford James Christian, Clifford Christian, and Gerrod Clifford. He was distantly related to Vance; they called each other “cousin.”
James testified that he was aware of the scam but not involved in it. According to all of the other participants, however, he played an essential role in it. Schumann called him the “ring leader” and “mastermind[].” Photos showed him at an ATM with Daniels and Ellis. 3 Daniels had been charged with murder and burglary. He pleaded guilty to being an accessory after the fact and two counts of forgery, with an agreed-upon sentence of four years four months in prison, in exchange for his truthful testimony. 4 None of the witnesses identified Fanning as a participant in the check scam. James testified that the checks came from Daniels and Fanning collectively, but when [footnote continued on next page]
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Vance and Schumann came up to the car. Vance “ripped the [driver’s side]
window out.” Both Vance and Schumann were holding knives, six to ten inches long,
and waving them around. They wanted to know what happened to money someone had
taken out of the bank account. They both said, “[W]here’s our fucking money[?]” They
were both angry, yelling, and cursing. They were accusing everyone and “making threats
to everyone[.]”
Both Vance and Schumann said they were going to Ellis’s house — according to
Vance, to “straighten things out”; according to Schumann, to “fuck him up.” They said if
Ellis did not have their money, they were going to “fuck him up” or “take his shit.” They
ordered Daniels to drive them there, or else they would “fuck [his] ass up.” Daniels
complied. Fanning went along, at Daniels’s request, to protect him; James stayed behind.
3. The confrontation at Ellis’s house.
At Ellis’s house, Vance went to a side window, cut the screen, then removed the
screen and climbed into the house. Ellis called 911 and reported that someone was
breaking into his home. Vance could be heard in the background, saying, “Where’s the
money at? Where’s my motherfucking money?” Ellis then stopped speaking.
Meanwhile, Schumann, holding her knife, went up to the front door, “pound[ed]”
on it, and “yelled,” “Open the door.” Someone let her in. Vance was yelling and saying,
asked if Fanning was a participant, he said, “I don’t know if he — I never did see him do anything with the checks.”
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“Do not mess with me.” Vance and Schumann then ran back out of the house and
jumped into the car.
Vance had a knife in his hand. Fanning saw blood on his jacket; Daniels saw
blood on his knife. Schumann was also holding a knife. In the car, Vance kept repeating,
“I shouldn’t have done the old man like that.” He also said, “I got fucking blood on my
hands.”
Schumann said, “Give me the knife so I can get rid of it.” She wiped Schumann’s
knife off on her clothing, then threw both knives out of the car window near some sewer
drains on Baseline.
Meanwhile, James heard noise coming from the direction of Ellis’s house. He
went to check on him. He saw Vance and Schumann come out of Ellis’s house and get
into the car; it “took off.”
Ellis’s front door was wide open. James went inside. There was “stuff throwed
all over the house, stuff turned over . . . .” Ellis was in the living room, “slumped over”;
his back was soaked in blood. He said, “That bitch got me.”5 James flagged down a
police officer who was responding to Ellis’s 911 call.
Ellis died at the scene. He had been stabbed twice in the back, causing death.
Both wounds were five and a half inches deep. His right eye area was torn and swollen,
indicating a blunt force injury. Bloodstain pattern analysis indicated that he was hit in the
5 James never told the police that Ellis said, “That bitch got me.” He explained that he was “hysterical” and unable to remember everything.
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face at least twice. It also indicated that he was sitting upright when he was stabbed.
There was a barbecue fork on an end table in the living room.
Daniels guided police to a drainage ditch near Baseline, where they found a knife
and part of a broken knife handle. Ellis’s blood was found on the knife. Ellis’s blood
was also found on Vance’s jacket. His blood was not found on Schumann’s clothing.
C. Defense Case.
1. Vance’s account.
Vance took the stand and testified: “I didn’t see it when it actually happened, . . .
but [Schumann] is the one that stabbed [Ellis] in the back.”
According to Vance, when he found that money was missing from the bank
account, he called Ellis, who said he had money for Vance. Vance and Schumann went
to his house. The lights were on, but no one answered the door.
Vance and Schumann suspected James of taking the money, so they went to
Fanning’s house to find him. Vance brought a knife, but only for self-protection. He
denied taking it out of his pocket. He did not know that Schumann had a knife. He saw
James, Daniels, and Fanning in the car and decided to “scare” them. He broke the
window by accident while trying to push it down. “[E]verybody was just yelling at each
other . . . .” Vance decided to go to Ellis’s house, and to take James along, so they could
not each blame the other. However, James refused to go.
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They went to Ellis’s house just to talk to him. There was no discussion of taking
anything from him. Vance and Schumann knocked on his door. Vance then went in
through the bedroom window; it was open, but he cut and removed the screen.
Vance found Ellis hiding on the floor in the living room. The lights were off.6
Vance said, “[W]here my mother fucking money at?” Ellis said, “I’m glad you’re here. I
got your money[.]”
Vance let Schumann in. Schumann and Ellis argued about the money. The phone
rang; Schumann looked and said, “911 is on the phone.” Vance started to leave the
house, but Ellis came at him with the barbecue fork. They struggled, knocked over some
furniture, then fell. Vance punched Ellis in the face only once.
Schumann said, “Let’s go,” and they left. Vance never drew his knife except to
cut the screen. He believed Schumann stabbed Ellis while he and Ellis were struggling,
to protect him.
Schumann asked for Vance’s knife and threw both knives out the car window.
That was the first time he knew she had a knife. He had only a few drops of blood on his
hands, from punching Ellis. He denied saying, “I shouldn’t have done the old man like
that.”
6 Vance told the police, however, “I flipped on the light.”
8
In an interview on October 25,7 Vance denied killing Ellis. He said that
Schumann must have stabbed Ellis, though he did not see her do it.
In an interview on October 26, however, Vance admitted stabbing Ellis twice in
the back. At one point, Ellis was holding the barbecue fork, but he had dropped it before
Vance stabbed him. At trial, Vance claimed that he confessed falsely to protect
Schumann, who was then pregnant with his child. She later miscarried.
2. Schumann’s account.
Schumann also took the stand. She testified that she did not stab Ellis and did not
see Vance stab Ellis.
Schumann’s participation in the check scam consisted of bringing a blank check to
Ellis’s house, making it out for $900, signing it with a false name, and endorsing it with
Ellis’s name.
Vance felt he had been cheated out of some money in the check scam. At his
request, she went with him to Fanning’s house, although she did not want to go. The plan
was just “[t]o talk to everyone.”
She always carried a knife for self-protection, because she had been robbed and
“roughed up” in previous incidents. It was paring knife with a blade not more than a two
inches long. She believed it was legal to carry.
7 Schumann’s jury was instructed that it could consider Vance’s “taped interview” on October 25 solely as showing “defendant Vance’s demeanor during the interview, and the conduct of the detectives in questioning defendant Vance.” As we read it, this instruction did not apply to oral testimony by either Vance or the officer about the contents of the interview. We limit our summary to that oral testimony.
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At Fanning’s house, Schumann took out the knife and brandished it at James
because he walked toward her aggressively. She did not know that Vance had a knife.
She suggested that Vance talk to James and Ellis, so they went to Ellis’s house.
The porch light was on; Schumann thought no one was home. She saw Vance go
toward a window and “heard a screen rip.” She went up to the front door. She intended
to tell Vance to leave. She heard Ellis say, “[T]hat’s enough, that’s enough,” and Vance
say, “Where’s my mother fucking money[?]” She knocked, and Vance opened the door.
It was dark; there were no lights on, other than the porch light. Ellis was on his
knees. “[H]e looked at [her] like help me[.]” She denied knowing that he had been
stabbed. He did not seem to be in pain; she did not see any blood.
She noticed a phone on a couch. A red light was on; she pushed a button to turn
the phone off, but then the phone rang. She said, “I think he called the police. Let’s go.”
Vance said, “[G]et out of here,” and they left.
While at Ellis’s house, Schumann never took out her knife. She did not see any
blood on Vance that night. However, Vance did say he had cut his hand and ask for a
handkerchief.
Schumann told everyone, “[G]et rid of your paraphernalia,” because she thought
Ellis had called the police and they might be searched. As she was getting ready to throw
out her own knife, Fanning handed her another knife. She did not see any blood on it.
Vance told her to throw “those knives” out the window, and she complied.
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The morning after the stabbing, the police interviewed Schumann. Her statement
was largely consistent with her testimony at trial. However, she said that, when she
entered Ellis’s house, he was sitting on the floor, and Vance was standing over him. She
knew that Vance had hurt him. She assumed that Vance had “hit him a couple of times
. . . .” Ellis was trying to use his phone. It rang once; it was Vance who turned it off. It
was also Vance who handed her his knife to throw out.
D. Schumann’s Testimony at the Section 1172.6 Hearing.
Schumann’s testimony at the section 1172.6 hearing was largely consistent with
her testimony at trial, except as follows.
She went up to Ellis’s front door because Fanning asked her to; “lights were
coming on and dogs were barking in the neighborhood.” She set only one foot inside the
house. She was able to reach the phone because it was on a table by the door; she denied
that it was on the couch (contrary to photos of the scene and her own trial testimony).
She turned the phone off only because it was a “distraction,” not to prevent Ellis from
getting help.
II
STATEMENT OF THE CASE
In 2003, Schumann and Vance were tried together before separate juries.
Schumann was found guilty of first degree murder (§ 187, subd. (a), former § 189, subd.
(a)) and first degree burglary (§§ 459, 460, subd. (a)). She was sentenced to 25 years to
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life. In her direct appeal, we affirmed. (People v. Schumann et al. (Aug. 4, 2006,
E036689) [nonpub. opn.].)
In January 2019, Schumann filed a petition to vacate the murder conviction
pursuant to section 1172.6. The petition was denied; Schumann appealed. (People v.